KPEKORO AND ANOTHER vs. THE REPUBLIC [1979]DLHC1080

Date	1979-08-14
Suit No.
Citation No.	[1979]DLHC1080

TAYLOR J.

W. A. ATUGUBA FOR THE APPELLANTS.

MRS. SOPHIA ADENYIRA STATE ATTORNEY FOR V. Y. AGUDETSE SENIOR STATE ATTORNEY FOR THE REPUBLIC.

[1979]DLHC1080
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													<main id="main" class="content" style="min-height: 60rem" >KPEKORO AND ANOTHER <o:p></o:p>vs. <o:p></o:p>THE REPUBLIC<o:p></o:p>[HIGH COURT, BOLGATANGA] <o:p></o:p>[1978] GLR 580<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
14 AUGUST 1979<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

W. A. ATUGUBA FOR THE APPELLANTS.<o:p></o:p>

MRS. SOPHIA ADENYIRA, STATE ATTORNEY, FOR V. Y.
AGUDETSE, SENIOR STATE ATTORNEY, FOR THE REPUBLIC.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

TAYLOR J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF TAYLOR J.<o:p></o:p>I have
already allowed the appeals in this case and have consequently quashed the
convictions and acquitted and discharged the appellants. I only wish to give
reasons now for so allowing the appeals. The appellants were arraigned before
the Circuit Court, Wa, charged jointly in count one with the offence of
conspiracy to smuggle contrary to section 23 (1) of the Criminal Code, 1960
(Act 29), and section 1 (h) of the Subversion Decree, 1972 (N.R.C.D. 90) as
amended by the Subversion (Amendment) Decree, 1977 (S.M.C.D. 94), and in count
two with subversion contrary to section 1 (h) of N.R.C.D. 90 as amended
aforesaid. The particulars of the offence are:<o:p></o:p>“(1)
Edmund Kpekoro: Farmer, 2. Samuel Bewel: Farmer. On or about 22 June 1977 at
Beat three area (Ghana-Upper Volta Border) near Hamile and within the
jurisdiction of this court did conspire together with persons now at large to
smuggle out of Ghana fifteen bags of fertilizer (type 15-15-15). <o:p></o:p>(2)
Edmund Kpekoro: Farmer, 2. Samuel Bewel: Farmer. On or about 22 June 1977 at
Beat three area (Ghana-Upper Volta Border) near Hamile and within the
jurisdiction of this court did attempt to smuggle out of Ghana fifteen bags of
fertilizer (type 15-15-15).”<o:p></o:p><o:p>&nbsp;</o:p>When the
case came before me for the hearing, I thought it involved legal points of
extreme importance and as the appellants were unrepresented, I gave them leave
to appeal without hearing them. On the hearing of the substantive appeal, Mr.
Agudetse, senior state attorney, appeared for the Republic but the appellants
were still unrepresented. On calling on the Republic to support the conviction,
Mr. Agudetse said he could not support the conviction, but he submitted that in
the circumstances of the case a re-trial should be ordered. The appellants were
obviously indigent persons and as I was of the opinion that it was in the
interest of justice that they should have the services of a lawyer to look
after their interest, I assigned to them by way of legal aid Mr. Atuguba,
learned counsel who was in court and who agreed to take up the assigned brief.
I did this by invoking the powers of this court under the provisions of section
110 (1) of the Courts Act, 1971 (Act 372) which states:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“110. (1)
Subject to the provisions of this section the Supreme Court, the Court of
Appeal or the High Court may at any time assign a lawyer by way of legal aid to
any party to any proceeding whatsoever before the Court in respect of which the
Court is of the opinion that it is desirable in the interests of justice that
that party should have legal aid and that he has not sufficient means to enable
him to obtain the services of a lawyer.”<o:p></o:p><o:p>&nbsp;</o:p>In order
to understand the legal problems that arose in this case, I think it is
essential to advert to the facts of the case and the proceedings at the trial.
When the charges were read to the appellants they both pleaded guilty but added
that they had explanations. After this, the prosecutor gave the following
facts:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“On 22
June 1977, two police constables stationed at Hamile in Ghana visited a friend
at Hamile in the Upper Volta. On their return to Ghana through a bush-path
leading to Upper Volta at about 7.40 p.m. the two constables met the accused
persons together with many others now at large. The accused persons were
pushing a hand truck loaded with something and covered with tarpaulin and
heading for Upper Volta. The two constables challenged the people but they
abandoned the truck and they ran into the bush. The constables blew their
whistles and two Border Guards officers rushed to the aid of the two
constables. Together they pushed the truck to the Border Guards Police Station
and made a complaint. When the load was uncovered it was found to contain
fifteen bags of fertilizer which were meant for farmers in Ghana. On the
following day the first accused was identified and arrested. On the third day
the second accused was identified and arrested. On 18 July 1977 the accused
persons were arraigned before Nandom Court for a provisional charge pending the
state attorney’s advice. Both accused persons were</main>